Guerrero v. Wright
Decision Date | 07 December 1949 |
Docket Number | No. 9832,9832 |
Citation | 225 S.W.2d 609 |
Parties | GUERRERO et al. v. WRIGHT et al. |
Court | Texas Court of Appeals |
Kyle & Walker, by Henry Kyle, of San Marcos, and Blair, Kendall & Randle, by Gaynor Kendall, of Austin, for appellants.
Tom C. Johnson, of San Marcos, and Strasburger, Price, Holland, Kelton & Miller, by Hobert Price, of Dallas, for appellee.
This is an action for damages on account of injuries which resulted in the death of Alfredo Guerrero, and which were sustained by him in a collision between the farm tractor driven by deceased and a cattle truck driven by appellee Gerald Allen. The collision is alleged by appellants (plaintiffs below) to have been caused by the negligent acts and conduct of Allen in driving the cattle truck, in the course of his employment as agent and servant of appellee Fred Wright. The suit was instituted and maintained by appellant Eulalia Guerrero, widow of deceased, for herself and as next friend of Irma, Nelda, Dora and Billie Ann Guerrero, minor children of deceased, and as independent executrix of the estate of deceased.
Trial was to a jury, and, upon its special issue verdict, all issues were answered favorable to defendants, and judgment was rendered (on motion of appellees) that appellants take nothing.
The case is before us on six points assigned as error.
Point No. 1 complains of the action of the court in admitting as part of the res gestae the testimony of witness Howell, to the effect that some 15 or 20 minutes after the collision, and away from the scene thereof, and while Allen, one of the defendants and the driver of the truck involved in the accident, was going to report the collision to his employer, that Allen told the witness that the tractor driven by deceased, Alfredo Guerrero, made a quick or sharp left turn out in front of the truck driven by Allen, and that such testimony was admitted over objection that the declaration was selfserving and an exculpatory statement, and was a retelling of past events, made after opportunity for reflection, and without any predicate laid by appellees to bring the declaration within the res gestae rule.
We believe that the admission of this testimony of witness Howell was error, and that the first assignment should be and is sustained.
Appellee Allen testified:
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The testimony of witness Howell is:
'Mr. Kyle: We object to any statement made away from the scene of the collision.
'Mr. Kendall: Also that it is a self-serving declaration.
'The Court: Objection overruled.
'Mr. Kyle: You overrule the objection?
'The Court: Yes, sir.
'The Court: Mr. Sheriff, retire the jury.
'Questions by Mr. Strassburger:
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'Mr. Kyle: Let me ask one question:
'Questions by Mr. Kyle:
It is to be observed that counsel for appellees offered the declaration as part of the res gestae.
The rule concerning res gestae is stated in Pacific Mut. Life Ins. Co. of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709, 712:
'* * * The rule as applied to this case is:
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Wetherbee v. Safety Casualty Company, 14987.
...but the Texas Supreme Court has held that the question is one of law. Pacific Mutual Life Ins. Co. v. Schlakzug, supra; Guerrero v. Wright, 225 S.W.2d 609, 613. Under Rule 43(a), Federal Rules of Civil Procedure, the rule, federal or state, which favors the reception of evidence governs. Th......
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Le Compte v. Sanders, 14286
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